Allowed

A.Velusamy v. the State Rep by

Madras HC8 Nov 2021CRL OP/7566/2021

Case brief

AI extract

What is this about?

In this quash petition, the High Court allowed the petition to dismiss the charge sheet filed in a criminal trial for injury by an electric shock. The court held that the proceedings were barred by the three-year limitation period under Section 468 IPC, as the charge sheet was filed four years after the incident, and continued prosecution would amount to an abuse of the court process.

What did the court decide?

The criminal original petition was allowed; the charge sheet and criminal proceedings were quashed as barred by limitation under Section 468 IPC and amounting to abuse of process.

A.Velusamy Vs the State Rep by — Civil Procedure and Limitation | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 29.09.2021

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PRONOUNCED ON : 08.11.2021

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CORAM

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THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

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Crl.O.P.No.7566 of 2021

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A.Velusamy ... Petitioner

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Versus

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1.State rep.by

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The Inspector of Police C2, Race Course Police Station

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Law and Order

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Coimbatore District.

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2.Ragunathan ... Respondents

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PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records in C.C.No.2890 of 2019 on the file of the Judicial Magistrate No.III, Coimbatore and quash the charge sheet.

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For Petitioner : Mr.A.Thiyagarajan For Respondents : Mr.A.Damodaran for R1 Additional Public Prosecutor : Mr.R.Sathish Kumar Legal Aid Counsel for R2

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ORDER

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This petition is filed to call for the records in C.C.No.2890 of 2019 on the file of the Judicial Magistrate No.III, Coimbatore and quash the charge sheet.

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2. The petitioner/accused, who is facing trial for the offence under Sections 283 and 338 of IPC before the Judicial Magistrate No.III, Coimbatore in C.C.No.2890 of 2019, has filed this quash petition.

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3. The gist of the case is that on 22.11.2015 at about 13.15 hours, electrical maintenance work was carried out by contract labourers of the Tamil Nadu Electricity Board

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Department in First Street, Gopalapuram, Coimbatore. The defacto complainant/second respondent and his colleague Kaliappan, while carrying on maintenance work in an Electric Pole, sustained electric shock and fell down, due to which they sustained grievous injuries. The shock was caused by the reverse flow current passed in connection 004-004-1296 of M/s.Sampoorana Lodge. The Velusamy/petitioner is the proprietor of the said Lodge and he had not obtained approval for using the generator. Further, he had not maintained the generator properly, due to which, the reverse flow current occurred and the said Ragunathan and Kaliappan sustained electric shock. Hence, a case came to be registered for the offence under Sections 283 and 338 IPC.

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4. The contention of the petitioner is that charge sheet filed by the first respondent is not maintainable either in law or on facts. The alleged accident is said to have taken place on 22.11.2015 and FIR in this case was registered only on 31.03.2016. LW13, is the Assistant Executive Engineer, of the Tamil Nadu Electricity Board, and his 161 (3) statement was recorded on 25.10.2017, wherein he stated that the police enquired him and thereafter, only a complaint has been lodged, but no such enquiry report is produced. The AR copy pertaining to LW2 would support the case of the petitioner. Further, no qualified officials from the Tamil Nadu Electricity Board were present, for over seeing the maintenance work. It is an admitted fact that three other Generators were functioning and no explanation has been given as to how this petitioner has been charged. Statements of witnesses confirm that they had disconnected the power supply and thereafter only engaged in the maintenance work. There is no material available in the final report to confirm that the reverse flow current was from the petitioner's Generator. He further submitted that the victim filed E.C.No.30 of 2016, and by order 15.10.2019, Executive Engineer, Tamil Nadu Electricity Board, was directed to pay the medical expenses and in the said proceedings no liability was fixed on the petitioner. Further raised the ground of limitation under Section 468 Cr.P.C.

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5. The learned counsel for the petitioner has submitted that in this case, charge sheet has been filed only in the year 2019 for an incident took place during 2015 with a delay of 4 years. In view of the same, as per Section 468 of Cr.P.C., no cognizance can be taken.

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6. The learned Additional Public Prosecutor submitted that in this case, on the directions of this Court in Crl.O.P.No.3246 of 2016, an FIR came to be registered on 31.03.2016 for the offence under Sections 283, 338 of IPC. On completion of the investigation, listing witnesses viz., LW1 to LW17 and documents were filed along with final report. LW1 and

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LW2 are the injured witnesses. LW3 is the contract labour, who arranged the other contract labourers. LW4, LW5, LW6 and LW7, are contract labourers to the Tamil Nadu Electricity Board and on the date of occurrence, they were also involved in the maintenance work. LW8 and LW9 are observation mahazar and rough sketch witnesses. LW10 and LW11 are neighbours of the petitioner. LW10 is the Manager of M/s.Shanthi Nivas Lodge, LW11 is the owner of Sree Ram International Hotel and LW12 is the son of accused, who is running Annamalai Hotel. All theses witnesses has stated about the usage of generator on that day. LW13, who is the Assistant Executive Engineer of maintenance, has stated that maintenance work is being carried out by LW1 and LW2 and also about the reverse flow of electricity. LW14 is the Doctor attached to VG Hospital, Tudiyalur, who treated LW1 and LW2. LW15 is the Assistant Government Doctor, Coimbatore General Hospital, who initially treated LW2. LW16 is the Sub-Inspector of Police, who registered the First Information Report and conducted preliminary enquiry. LW17, the Investigating Officer, who conducted further investigation and filed charge sheet in this case. The Lower Court on perusal of the statements and documents produced, found prima facie materials against the the petitioner and took the case on file in C.C.No.2890 of 2019, issued summons. On receipt of the summons, the petitioner has come before this Court and filed the above petition. The points raised by the petitioner are factual in nature, to be raised during trial and hence opposed the quash petition.

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7. The defacto complainant has submitted that he and LW2 were engaged by LW3 to work under the Tamil Nadu Electricity officials as contract labourers. They have been working for nearly 19 years as Contract Labourers, carrying on maintenance work of the Electricity Department, as per the directions of the Electricity officials. They are not provided with any safety gear and protective equipments by the Electricity Board. The labourers make their own arrangements for their safety. On 22.11.2015, maintenance work was carried on in Gopalapuram, 1 st Street, Coimbatore, prior to it, the electricity connection was cut off and flow of electricity was disconnected form the sub Station transformers. Thereafter, the defacto complainant and LW2 climbed the Electric Poles, carried out the maintenance work. When they descended for lunch at 1.15 p.m., they came in contact with the reverse flow of electricity from the connection No.004-004-1296 due to improper maintenance of Generator from the petitioner's Lodge. The defacto complainant and LW2 were thrown off from the electric poles and sustained injuries. Thereafter, they were taken to Hospital and given treatment. In this regard, on 27.11.2015, a complaint was lodged to the respondent police, CSR.No.1012 of 2015 assigned but thereafter no FIR registered. Hence, he moved Crl.O.P.No.3246 of 2016 and thereafter, only FIR got registered. LW2 to LW7 are the other

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contract labourers, who were present along with the defacto complainant, and carried out the maintenance work, confirm and corroborate the version of LW1 and LW2.

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8. All the witnesses categorically state that the defacto complainant and others were engaged in the maintenance work as contract labourers of the Tamil Nadu Electricity Board and the injuries sustained by LW1 and LW2. The medical records also confirms the injury sustained was due to the above incident. LW13, Assistant Executive Engineer, Tamil Nadu Electricity Board confirms the maintenance work and engaging of the defacto complainant and others for the maintenance work. On completion of investigation, charge sheet filed and the trial Court after considering the statements, documents and materials produced has taken the case on file. The points raised by the petitioner are disputed facts to be decided during trial.

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9. Mr.Sathish Kumar, Legal Aid Counsel for the second respondent had relied upon the judgment reported in 2017 SCC Online MAD 37645: 2017 (2) LW (Crl) 107 on the point of the limitation raised by the petitioner.

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10. Considering the submission and perusal of the materials, it is seen that the occurrence took place on 22.11.2015 and the complaint was lodged on 27.11.2015 and the respondent police assigned CSR No.1012 of 2015 on the same day. It is also seen that during examination of the Doctors LW14 and LW15 they confirm the injury sustained by LW1 and LW2. From the statement of LW1 and LW2, it is seen that the respondent Police has not registered the First Information Report immediately, since no officials of Tamil Nadu Electricity Board lodged the complaint giving details about the maintenance work. On the direction of this Court in Crl.O.P.No.3246 of 2016, FIR came to be registered on 31.03.2016. The statement of witnesses LW1 to LW7 confirm that they are all contract labourers engaged by the Tamil Nadu Electricity Board. They also state that no protective gears were provided for their safety by the Tamil Nadu Electricity Board Department, no qualified person was present from the TNEB to supervise the maintenance work and the entire work had been left to the contract labourers. It is also seen that LW1 to LW7 stated that they enquired the reason for the electric shock and found that due to the Generator operated by the petitioner's Lodge, the incident had occurred, which is not supported with any material is only an assumption.

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11. On the contrary, there are evidence of LW10, LW11 and LW12, who are the Manager and Proprietor of M/s.Shanthi Nivas, Sree Ram International Hotel and Annamalai Hotel, who state that all the three have generators and they have also stated that no one from the EB Department has carried out,

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visited the place of generator, conducted physical examination to ascertain whether any reverse flow of current is possible. Without such exercise and materials, it cannot be said that the petitioner is the reason for the incident.

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12. In view of the same, it cannot be held that any reverse flow of power has flown from the generator of petitioner to the EB main line. The log book from the sub station produced to show the timing of disconnection of power and the person who was indulged in substation was not examined. Further the statement of LW1 to LW7 clearly confirm no qualified personnel/Engineer from TNEB was present to supervise the maintenance work, which is a conditional requirement.

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13. LW12 positively states that on the date of occurrence, Generator in M/s.Shanthi Nivas was not operated. The Assistant Executive Engineer/LW13 states that one Dhivyanathan and Manikandan, the field Assistants of TNEB were present on the date of occurrence, but these two persons were not examined and shown as witnesses. During investigation, the respondent Police sought clarification from LW13 and in reply, LW13 stated that he had informed his superior officer about the maintenance work orally. Further he state that safety and protective equipments are provided to the contract labourers. Though he confirms that one Dhivayanathan and Manikandan were present in the work, neither any documents were produced nor they have been examined. Likewise, the enquiry conducted by him on 22.11.2015, did not confirm that the petitioner's Generator being the cause for the accident. Thus, the Assistant Executive Engineer reply confirms that it cannot be conclusively held that the petitioner's Generator alone was in operation and by a reverse flow electricity from his generator, the incident occurred.

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14. In this case, for offence under Section 283, sentence is fine and for offence under Section 338, imprisonment of two years with fine may be imposed is contemplated. As per Section 468 (2) (c) of IPC, the period of limitation would be three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years. In this case, the complaint was lodged on 27.11.2015 and after four years of occurrence, charge sheet filed, which is barred by limitation under Section 468 IPC. The lower Court when taking the case on file had not considered and condoned the delay.

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15. The Hon'ble Apex Court in the case of Sarah Mathew Vs. Institute of Cardio Vascular Disease, reported in (2014) 2 SCC 62, the Five Judges of the Hon'ble Apex Court had observed as follows:

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“44. A full Bench, consisting of five judges of the

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Hon'ble Supreme Court, in the case of Sarah Mathew Vs. Institue of Cardio Vascular Disease, (2014) 2 SCC 62, while deciding an issue with regard to limitation and taking conginance of an offence as provided by Chapter XXXVI of the Code of Criminal Procedure, have observed that

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“the objection of the criminal law is to punish perpetrators of crime. This is in tune with the well-known legal maxim nullum tempus aut locus occurrit regi, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the latin maxim vigil antibus et non dormientibus, jura subveniunt. Chapter XXXVI, Cr.P.C., which provided limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim.”

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45. While inserting Chapter XXXVI (Sections 467 to 473) in the Cr.P.C., 1973 from the statement of objects and reasons as well as from the decision of the Joint Committee of Parliament the following grounds have been considered for prescribing the period of limitation and they are:

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“(1) As time passes the testimony of witnesses becomes weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with the result that the danger of error becomes greater.

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(2) For the purpose of peace and repose, it is necessary that an offender should not be kept under continuous apprehension that he may be prosecuted at any time particularly because with multifarious laws creating new offences many persons at some time or the other commit some crime or the other. People will have no peace of mind if there is no period of limitation even for petty offences.

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(3) The deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of persons concerned.

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(4) The sense of social retribution which is one of the purposes of criminal law loses its edge after expiry of long period.

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(5) The period of limitation would put pressure on the organs of criminal prosecution to make every efforts to ensure the detection and punishment of the crime quickly.”

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16. Considering the facts, materials, limitation, further following the Apex Court decision referred supra, this Court is of the view that looking at from any angle, both on facts, materials and on point of limitation, continuation of the proceedings would amount to abuse of process of law. Hence, this Criminal Original Petition is allowed.

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17. This Court places special appreciation to the Legal Aid Counsel Mr.Sathish Kumar, who had thoroughly prepared and made factual and legal submissions on the case of the defacto complainant.

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Sd/-

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Assistant Registrar(CS-II)

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//True Copy//

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Sub Assistant Registrar

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dna

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